Department of Public Health,

Dilip Pancholi,

Richard S. Lak, Esq.

Patrick Morgan, Esq.

Rifkin & Morgan 81 Washington Street, Suite 31 Salem, MA 01970

Administrative Magistrate:

Maria A. Imparato, Esq.

RECOMMENDED DECISION

Under 42 USC 1396r (e) (2), G. L. c. 111, ss. 72F-72L, and 105 CMR 155.000 et seq., the Petitioner, Department of Public Health ("DPH"), filed a complaint investigation report with respect to the Respondent, Dilip Pancholi, a certified nurse aid ("CNA"), following a finding of abuse of a resident in a long-term care facility. (Ex. 1) Mr. Pancholi filed a request for an adjudicatory hearing on the issue raised in the report. (Ex. 2)

I held a pre-hearing conference on March 10, 2008.

I held a hearing on the merits on June 23, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, 4th floor, Boston. I admitted documents into evidence. (Exs. 1 - 15) There are two tape cassettes of the hearing.

I asked Ms. Bartel to provide a typed version of her handwritten notes that were entered into evidence as Exs. 3, 4, 5, and 6. On June 24, 2008 Ms. Bartel supplied typewritten notes which I appended to the original handwritten exhibits.

FINDINGS OF FACT

1. Dilip Pancholi worked as a CNA at Pilgrim from June 1994 to November 2002, and again from 2004 to September 19, 2007.

2. AL is an 82 year old woman who has resided at Pilgrim since 2001. She carries diagnoses of Parkinson's disease, GERD, hypertension, anxiety, depression and mental status changes, including dementia, delusions and behavioral disturbances. She is totally dependent on staff for bathing, dressing and toileting. (Exs. 7, 10, Testimony)

3. AL is often agitated and tries repeatedly to get out of her wheelchair or her recliner. On September 15, 2007, she got out of her chair and fell, sustaining a scratch above her right eyebrow. (Exs. 11, 14)

4. On September 18 - 19, 2007, Mr. Pancholi worked a double shift, from 2:30 to 11 p.m. and then from 11:00 p.m. to 6:45 a.m. (Ex. 9)

5. On September 18, 2007, AL was agitated and tried continually to get out of her chair. The CNAs on the shift took turns watching AL for one-half hour at a time by staying within one foot of her and redirecting her back into her chair when she tried to rise. (Ex. 11, Testimony)

6. Mr. Pancholi was assigned to watch AL from 7-7:30 p.m., and again from 9-9:30 p.m. Mr. Pancholi was with AL in the TV room from 7-7:30 p.m. AL tried on several occasions to get out of her chair, and Mr. Pancholi verbally redirected her back into the chair. On several occasions when AL did not respond to Mr. Pancholi's verbal command, Mr. Pancholi pushed AL back by her shoulders into the chair. (Testimony, Ex. 1, p. 10)

7. At about 8 p.m. Mr. Pancholi washed AL up and put her in a johnny. He did not notice any bruise on AL's left bicep. (Ex. 4)

8. Sometime between 9 and 9:30 p.m. Mr. Pancholi closed up the television room and brought AL to sit in front of the nurses' station where AL spent the night in her recliner. AL was medicated with Seroquel and she slept from about 3 to 3:30 a.m. She was on one-on-one supervision throughout the night in front of the nurses' station. Mr. Pancholi did not care for AL after 9:30 p.m. (Ex. 13, Evelyn Aborgah, LPN; Testimony)

9. On the morning of September 19, 2007, AL met with her consultant psychiatrist and pointed to a bruised area on her left biceps. AL indicated that last night her arm was squeezed by a hand. (Ex. 10)

10. The consultant psychiatrist noted in her progress note that AL had been less delusional in the previous few months. She increased AL's dose of Seroquel, Ativan and Depakote, and notified the unit manager of the bruise on AL's left bicep. (Ex. 10)

11. The unit manager informed the Director of Nurses, Janine Gilchrist, and a Nurse Practitioner, Jeanne Earle, about the bruise on AL's bicep. Ms. Gilchrist and Ms. Earle went to AL's room and saw the bruise which was dark and striped. AL said, "He grabbed me and punched me in the head." When asked who "he" was, AL said she was too afraid to say and she burst into tears. (Testimony, Earle)

12. AL told Ms. Gilchrist that the person who grabbed her was "Dilip." (Testimony, Gilchrist)

13. On the evening of September 19, 2007, AL's son came to visit her. He noticed a deep, dark bruise resembling a hand grasp on AL's left bicep. AL told him that "Dilip grabbed" her and hit her on the head a few time because she wanted to get up and he put her back in her chair. (Testimony, Lathrop)

14. Ms. Gilchrist began an investigation. She interviewed Mr. Pancholi who denied knowledge of the bruise on AL's left bicep. Mr. Pancholi was suspended pending the outcome of the investigation. (Ex. 7)

15. On September 20, 2007, Ms. Gilchrist faxed a report to the DPH. (Ex. 7)

16. There was no other male CNA on duty on AL's floor on the night of September 18-19, 2007 other than Mr. Pancholi. (Ex. 11)

17. Other CNAs, an LPN and a Supervisor on duty on September 18-19, 2007 did not witness any incident of abuse. (Ex. 13)

18. On September 27, 2007, the DPH Surveyor interviewed AL. AL told the Surveyor she was trying to get on the floor when "Dilip" grabbed her, threw her on the chair and punched her left upper arm. She said she did not report the event immediately because she was afraid that he would come back again. When she asked AL why he did this to her, AL said Mr. Pancholi said he did it "because you don't listen to me." (Ex. 3, Testimony)

CONCLUSION AND RECOMMENDATION

The DPH has not met its burden of proving that Dilip Pancholi abused resident AL on the night of September 18-19, 2007.

Abuse is defined under 105 CMR 155.03 (1) (a) (b) as the willful infliction of injury with resulting physical pain. The contact will not be considered abuse if the physical contact "occurs in the course of attempting to restrain the behavior of the … resident … and both the type of physical contact involved and the amount of force used are necessary in order to prevent that … resident from injuring … herself," under 105 CMR 155.003 (3) (c).

Although AL named the Respondent as the person who left the bruise on her left bicep, I am not convinced that this is the case for several reasons. AL is known to have suffered delusions, and she takes Seroquel, an antipsychotic drug. AL was under the care of other CNAs during the 11 p.m. to 6:45 a.m. shift. The Respondent did not care for AL after he left her at the nurses' station at or about 9:30 p.m.

The Surveyor spoke with and took evidence from additional CNAs who are mentioned in her report, but those CNAs did not appear and testify at the hearing. I decline to rely on their untested allegations contained in the Surveyor's report. The Surveyor's notes indicate that Ms. Gilchrist received an anonymous note from a CNA the next day accusing the Respondent, but Ms. Gilchrist did not offer testimony to this effect, and the CNA was not presented as a witness. AL told the Surveyor that the Respondent punched her on the left arm. AL's bruise was consistent with a hand squeeze, but not with a punch. The Respondent's testimony that he did not harm AL is credible.

Additionally, it is unclear from the record when AL first names the Respondent as the person who bruised her. According to the testimony of Ms. Earle, AL would not say on September 19, 2007 who bruised her. But Ms. Gilchrist, who visited AL in the company of Ms. Earle on September 19, 2007 testified that AL names the Respondent at that time. It is unclear what effect, if any, the anonymous note Ms. Gilchrist received the next day had on the identification of the Respondent as the person who bruised AL.

I conclude that a staff member, in an attempt to return AL to her chair when she repeatedly tried to get up, grabbed her arm in an attempt to reseat her to stop her from falling and injuring herself, as she had a few days earlier. In view of the fact that AL had one-to-one coverage during the two shifts on September 18-19, 2007, it is impossible to determine who it was who grabbed her.

I conclude that the DPH has not met its burden of proof in this case, and that the Respondent's name should not be placed on the nurse aide registry.